Posted
by
CmdrTaco
on Thursday January 15, 2009 @01:12PM
from the can-we-rule-the-ruling-illegal dept.

BuhDuh writes "The New York Times is carrying a story concerning that well known bastion of legal authority, the 'Foreign Intelligence Surveillance' court, which has ruled that the National Security Agency's warrantless eavesdropping program was perfectly legal. It says, 'A federal intelligence court, in a rare public opinion, is expected to issue a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a court order, even when Americans' private communications may be involved, according to a person with knowledge of the opinion.'"

You should ask the people in Cairo where they think we're heading. Egypt's a "democratic" country terrorizing its people under the guise of a "war on terror." Really, you just need to intercept communications of those people who oppose you in any form or fashion and simply provide even the slightest proof that they belong to The Muslim Brotherhood. The screams in the night are nothing to concern you, comrade, you haven't done anything wrong so why should you be worried?

I don't think anything really bad is being done against the American people at this moment. I do think that boundaries are being crossed whereby if the wrong person gets into power, there is no going back. Just ask yourself: What Would Nixon Do?

Yeah...didn't think so. He's not a soldier of any sort; referring to him as such is an insult to those who are. He's an unlawful combatant. He should consider himself lucky he didn't get a bullet to the head when he was captured.

So then, when he did get captured, he should be tried as a common criminal, in a court of law like other criminals, correct? Or is this a special case in which he shouldn't be afforded basic rights for fighting against the US?

Yaser Esam Hamdi [wikipedia.org] - American Citizen, Enemy Combatant. The Supreme Court denied the executive request to hold him indefinitely without trial. He was handed over to Saudi Arabia after being stripped of citizenship.

John Walker Lindh [wikipedia.org] - American Citizen, Enemy Combatant. Entered a guilty plea on 2 of his 10 charges; carrying weapons and serving in the Taliban army. Currently serving 20 years in an American prison.

The most disturbing case, however, is that of Jose Padilla [wikipedia.org], who was never held in Guantanamo, to our knowledge, but is an American citizen arrested in the United States and declared an enemy combatant. He very likely was an "evil doer(TM)" but the way his case was handled was disturbing to say the least.

When your government has the right to listen in on your communications, interpret them as they see fit, and make you disappear without justifying the cause to anyone but themselves you've set up a powerful system for abuse. If not by those that set it up, by someone that takes the reigns of power down the road.

He was handed over to Saudi Arabia after being stripped of citizenship.

You mean, "after agreeing to renounce his citizenship", right? You also left out the part where he was released from Gitmo and brought to the United States once his citizenship status was discovered.

John Walker Lindh [wikipedia.org] - American Citizen, Enemy Combatant. Entered a guilty plea on 2 of his 10 charges; carrying weapons and serving in the Taliban army. Currently serving 20 years in an American prison.

Lindh was never held in Gitmo so I'm somewhat baffled as to why you are bringing him up in the context of this discussion. He got his day in court and opted to plead guilty rather than take his chances with the jury. What's the problem here?

The most disturbing case, however, is that of Jose Padilla [wikipedia.org], who was never held in Guantanamo, to our knowledge, but is an American citizen arrested in the United States and declared an enemy combatant.

You left out the part where he eventually got his day in court and was convicted by a jury.

but the way his case was handled was disturbing to say the least

That much I'll give you. As an American citizen captured on American soil he should have processed through the civilian justice system and accorded the right to a speedy trial. None of this really relates to my original question though. Which American citizens are currently being held in Gitmo?

"The most disturbing case, however, is that of Jose Padilla [wikipedia.org], who was never held in Guantanamo, to our knowledge, but is an American citizen arrested in the United States and declared an enemy combatant."

You left out the part where he eventually got his day in court and was convicted by a jury.

He was held incommunicado without charges for more than three years and put into the civilian justice system at the 11th hour to try to prevent the Supreme Court from ruling on the legality of his det

No, Obama has said that one of his first acts would be to order the closure of the detention camps. [go.com] That is not the same as freeing the prisoners there. More likely the current prisoners or detainees whatever you want to call them will be relocated to other facilities. Also, the order will not likely to be enforced immediately as the relocation would take some time. A side consequence may be that some of the detainees may finally get their trials or tribunals. This may free those who have played no part in acts of terrorism.

The American government and Constitution were founded on the idea that everyone has the same rights, whether they are citizens of the U.S. or not.

When has the Constitution ever been held to apply to prisoners of war? Do you really mean to tell me that all those German and Japanese POWs we captured could have petitioned for habeas corpus?

I realize that we specifically designed them as unlawful combatants instead of POWs but the point still stands. You are confusing domestic law enforcement with alien combatants captured on foreign battlefields while engaged in combat with US forces. Given the fact that none of them even followed the laws of war to

I didn't realize we had battles over simple brass horns..
All joking aside I think that the conflict results over whether one believes that the phrase "inalienable rights" means natural rights that every human has, or simply legal rights spelled out in a rule of law -- the difference between written rights and moral rights.
Morally, we should be treating everyone equally, regardless of how they treated us -- isn't that how the saying goes? That's not to say we cannot fight for our rights or well being, b

The Geneva Convention applies to prisoners of war; however, the Bush administration's standpoint was they were not prisoners of war either so they didn't get those rights. I see this as a move by the Bush administration to avoid any culpability and any scrutiny.

The Geneva Convention applies to prisoners of war; however, the Bush administration's standpoint was they were not prisoners of war either so they didn't get those rights.

The Geneva Conventions also lay down requirements that combatants must meet if they want to receive the protections accorded therein. When Al Quada starts fighting in uniform under the command of officers while taking steps to minimize civilian casualties I'll start worrying about the fact that they aren't being accorded POW status.

Mind you, I'm completely opposed to torture but I draw the line at giving enemy combatants (whether accorded POW status or not) access to our civilian judicial system. As far as I'm concerned the military can hold them until such time as hostilities against our country are ended. As far as I'm concerned our military doesn't even need to concern itself with taking them prisoner in the first place unless it deems that they may have useful intelligence.

To be entitled to prisoner-of-war status, captured service members must be lawful combatants entitled to combatant's privilegeâ"which gives them immunity from punishment for crimes constituting lawful acts of war, e.g., killing enemy troops. To qualify under the Third Geneva Convention as a POW, a combatant must have conducted military operations according to the laws and customs of war, be part of a chain of command, wear a "fixed distinctive marking, visible from a distance" and bear arms openly.

I'm not sure that the goal is to give them access to our civilian courts, but to be tried in a court of law where they can mount a defense and the government can bring their evidence to bear, so that people who are being detained illegally get a fair trial. Can anyone really argue against that knowing that there might be people there that aren't involved... and stories that some were sold to military police? Why not have a neutral party (country) try these prisoners so that we can discover who belongs there?

This is from the Wikipedia article [wikipedia.org] on unlawful combatants.

The Geneva Conventions apply in wars between two or more states. Article 5 of the GCIII states that the status of a detainee may be determined by a "competent tribunal." Until such time, he is to be treated as a prisoner of war. After a "competent tribunal" has determined his status, the "Detaining Power" may choose to accord the detained unlawful combatant the rights and privileges of a POW, as described in the Third Geneva Convention, but is not required to do so. An unlawful combatant who is not a national of a neutral State, and who is not a national of a co-belligerent State, retains rights and privileges under the Fourth Geneva Convention so that he must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial."

In other words, if the US want to follow international law it should either treat these prisoner an normal criminals and give them a fair trial, or treat them as POW for which the Geneva Conventions apply. Now GWB signed a memorandum the Feb. 7 2002, stating that the Geneva Convention doesn't apply to al-Qaeda or the Taliban, but that is not international law, and hopefully just a parenthesis in US history books.

Specifically, the Germans launched Operation Greif [wikipedia.org], which involved using captured allied vehicles and uniforms behind allied lines. Under the Hague Conventions [wikipedia.org], executions were allowed, and indeed, 16 people were executed after military trials.

When has the Constitution ever been held to apply to prisoners of war? Do you really mean to tell me that all those German and Japanese POWs we captured could have petitioned for habeas corpus?...
You are confusing domestic law enforcement with alien combatants captured on foreign battlefields while engaged in combat with US forces.

I'm certainly not scholar of constitutional or military law, but this is my view:

As is, I believe, discussed in the Federalist papers, the framers viewed the bill of rights

In the news today, the Pentagon was ordered to free a man they'd accused of being on one of these suppsed foreign battlefields after failing to provide evidence he was even in the country they supposedly arrested him in. Many of those arrested and imprisoned were captured by bounty-hunters who provided such damning evidence as the culprit wearing a Casio watch. Frankly, if you can't provide any evidence that these people WERE on any battlefield anywhere on the planet, legally or otherwise, then you have lit

This [state.gov] page outlines American concerns better than I can. These points stick out in my mind although the other ones seem equally legitimate:

* We object, however, to the investigation or prosecution of our citizens by the ICC, whose jurisdiction we have not consented to and which lacks necessary safeguards to ensure against politically motivated investigations and prosecutions.
* Even in cases in which the United States has appropriately exercised its responsibilities to investigate and/or prosecute in a pa

The Constitution does not distinguish between citizens and non-citizens when it affirms the natural rights of individuals. Therefore, by saying that non-citizens have different rights, you would be adding meaning that is not supported by the text of Constitution or the Declaration of Independence.

The natural rights described by the Declaration and affirmed by the Bill of Rights were meant to apply to all individuals; they are inalienable rights given to us by our Creator, or natural rights we have by virtue

What if you were arrested on vacation, in, say, England, or Australia? Wouldn't you like to get a fair trial, at least by their standards? Or is it okay for them to stick you in a hole, have you extradited to a country where you are tortured, convict you in absentia, and maybe even execute you, because you aren't a citizen, and only citizens get rights?

If while on vacation I knowingly AND willingly attempted to kill innocent people, I would expect to be thrown into a hole.

And, by extension of the kinds of policies I expect you advocate, if you are accused of knowingly and willingly attempting to kill innocent people, you would expect to be thrown into a hole.

As you say, there's a chance you might get released at some point. Much less of one, mind you, since you're denied fair trial and such, but hey, you're not a citizen, why should you get any such special treatment like due process, right?

This brings to mind something Hermann Goering said during his trial at Nuremburg. He said something along the lines of identify someone different and tell the people that that guy is the enemy and he wants to hurt you. The people will then allow you to do anything as long as you keep them safe.

Didn't Santayana say something about those who do not remember history are condemned to repeat it?

The Constitutional Law is clear that wuch wiretapping is not allowed unless the police can get a warrant issued by a judge.

Its not so clear. In the early days of wiretapping, no warrant was required for anyone; as phone calls were not thought to be "persons, houses, papers, and effects". Don't get me wrong, I like that warrants are needed, but the issue has not always been so clear cut.

I listened to Antonin Scalia describe this a little while ago on CSPAN. While the Constitution obviously couldn't address telephones directly when it was created, and Scalia's viewpoint is it does not change with the times unless directly amended (I assume he then thinks it would have to be updated with every new technology???) I wonder if mailings from one person to another were protected in any way? Does the government require a warrant to intercept postal mail (which did exist at the time and might be covered under "effects"?) While it is easy to consider a phone call to be a conversation (which is not covered) is could also be considered a conversation at the source and at the endpoint, and real time mail in between. You can have a conversation via mail. It tends to be really slow, but an exchange of letters back and forth is a conversation. I think you'd have to look at the Why we have the protection from the government, rather than the strict lettering of What protection we have. If you just look at the What, then it reminds me of traditions where everyone does something a certain way, but no one knows why it is done that way. What's the point? How could you ever know if/when a tradition needs to be changed (amended) if no one remembers the Why any longer? The Why is at least as important as the What, IMHO.

I think you'd have to look at the Why we have the protection from the government, rather than the strict lettering of What protection we have.

Its hard enough to get anyone to agree on what protections the Constitution offers, let alone why those protections are there. When the public abdicated their responsibility to maintain a relevant Constitution, and gave that power to the Judiciary, we started down this path.

If you just look at the What, then it reminds me of traditions where everyone does something a certain way, but no one knows why it is done that way.

If the American people ever forget why the government's power is limited by the Constitution, we'll soon have a government which reminds them.

"Effects" is "possessions". I don't think it's necessarily certain that a communication conducted over a system that is, for the most part, not owned by either communicating party, is their possession.

By extrapolation, it is not unreasonable to assume that, had the Founding Fathers envisioned telephones and e-mail, they would have included them in the 4th amendment as well.

I don't think you can leap to that conclusion quite so quickly. Postal mail was around then, yet they left that out of the 4th amendment.

We can go around and around, trying to guess what the founders meant when they wrote the Constitution, or we can change the Constitution to say exactly what we want now. When we try to derive intent from the limited text of the Constitution, we end up in the situation we are in now: judges end up twisting and contorting the actual wording of the document to fit the times. We should be interpreting it as written, and changing the text of the document as the times change.

The reason that the Constitution is so short, and so vague, is that it is a Treaty among the states that could not agree on anything. Prior to the failure of the Articles of Confederation, the states, having just rebelled against a Federal Power in Great Britain, did not want any power over them at all. They only adopted the Constitution because the founders recognized that there existed a need for a small, but powerful, Federal Government, to provide for some basic, common things, like military and regulation of commerce among the states.

Anything else, not in the Constitution, is explicitly left to the states, and that says, essentially, that if it is not in the Constitution, then the Federal Government is NOT allowed to do it.

So yeah, you could make a pretty strong case that, in the strict sense, Bush's wiretapping is illegal as it is not an enumerated power. However, this country, perhaps wrongly, largely believes that the Constitution is a "living document", not the treaty that it is. While this view is propagated by the American left wing - Obama even spells this out in his book, it is also true that the right wing, particularly under President Bush, has also taken the "living document" approach. Thus, the Federal Government now has the power to regulate the environment, local schools, hiring practices, voting within the states (and THAT is blatantly unconstitutional), and any other number of things.

So, it's not just that Bush is unconstitutional. It's that, every President since even Jefferson and arguably even George Washington has been unconstitutional! Jefferson, you will recall, argued rather violently against a strong federal government, but then had no problem with actually going out and purchasing the Louisiana territories from the French, lying to Congress, fighting an undeclared war against the French and Barbary Pirates, all the while writing about Freedom in an enormous set of letters to Madison and everyone else, bitching about slavery while knocking his own slaves up.

So yeah, you -could- make the case, that all the Presidents are unconstitutional, and the whole damn thing was a failure, except that, there were those who actually saw the Constitution as the creation of a President as essentially a king for a democratically restricted length of time, his power for war and taxation removed from him, but pretty much able to do whatever he wanted, and within that history then, you would really have to square Dick Cheney's view of the Presidency as Hamiltonian, more than anything else.

Please be sure to use the entire quote from Franklin. This entire quote is "They who would give up an essential liberty for temporary security, deserve neither liberty or security." These adjectives change the meaning of the quote entirely.

No, I am disagreeing. I believe Franklin clearly meant "essential" to describe the nature of "liberty". For your interpretation to make sense, he would have had to say "an essential liberty" (as you do), or more likely "essential liberties". He didn't. He said "essential liberty" as a non-specific singular, and not by accident.
If you read a significant amount of Franklins writing you'll note that grammar is not his weak suit. Also, there is no need to rely on detailed parsing of this one sentence. While that quote puts it particularly poetically, the idea I claim he expresses through it is also expressed about five billion other ways throughout his work.

"Franklin was undoubtedly referring to basic liberties provided by the constitution."

Undoubtedly? Years before that list was written? Really? I had no idea. He doesn't mention his psychic abilities in his autobiography.

My biggest issue with this is domestic internet communication is semi-routinely routed through other countries and the eavesdropping program has no way to tell whether the 4th amendment is being violated.

Basically, the court just gave permission to the NSA to dragnet anything they want without a warrant so long as they can demonstrate there is a possibility that the communication was to or from a foreigner.

Egypt's a "democratic" country terrorizing its people under the guise of a "war on terror."

That's bull. What hate America, left wing source gave you that information and tried to compare us to Egypt in terms of democracy? This is patently false on it's face. Egypt instantly fails the first test anyone would do when trying to determine see if a country is a democracy. They don't have any free or fair elections. Hosni Mubarak proved that beyond a shadow of a doubt. They have been a mild dictatorship at best for decades, and everyone knows it. Contrast that to the US... if we were a dictatorship under president Bush, as so many on the left wildly claim, then why is he voluntarily leaving power? A dictator doesn't care about term limits. And why is someone he didn't vote for coming to power? Because we still respect the will of the people in this country. We actually are a democracy and don't have hand picked successors.

Just ask yourself: What Would Nixon Do?

How about we ask, "What would George Washington do?" Answer: The exact same thing. Ever since this country was founded we have done this same sort of stuff. The early presidents all found spying ok, all engaged in it, and all inspected foreign mail during war. Move forward a little and you'll find that FDR and JFK did the same sorts of warrantless wiretapping we are doing now, and they are Democrat heroes. In fact, Robert Kennedy did more than probably anyone in history. There is a difference between regular criminal mischief and war, and a difference between American citizens protected under the constitution and people from other countries. Most reasonable people recognize this. During wars especially, but even when not at war, the US (and all other nations) have the right to spy on each other without asking for a warrant from the international court. Only our own citizens are protected from illegal search and seizure under the constitution. Foreign enemy terrorists are not. Sorry.

The problem, of course, is that who identifies these "foreign enemy terrorists" as such?

How do you know that I, for example, am not a foreign enemy terrorist? Who gets to make that ruling? The same people who want to do the spying?

But if all they require is a declaration, then ANYONE can be declared a "foreign enemy terrorist," including natural-born Americans who have been summarily stripped of their citizenship because they have been declared "foreign enemy terrorists". After all, who would stand up for a "foreign enemy terrorist" who is pretending to be an American citizen?

Bellicose cowards are very quick to declare themselves as having perfect knowledge of who the law applies to, and by implication as having perfect knowledge of which individuals fall into which category. Millennia of history show that when bellicose cowards are put in charge they always declare anyone who disagrees with them about anything a "foreign enemy terrorist" and do everything they can to put them outside the rule of law.

I traveled to Egypt to gather colloquial Arabic footage for some online courses. It was a good time, but the "security" issues and the corruption of the local officials was on par with Subsaharan Africa countries.

However, there was a great difference in the freedom of speech category. For example, we were filming in a private household and each family member was taking turns telling jokes. (Like "Wahid saiidi fahim wemaat!") Everything went fine until the ten-year-old son started his joke...

"Al ra-ees Mubarak..." [President Mubarak...]

At which point his father flew to his feet, commanded us to turn of the camera, and took his son in the other room for a talk.

Until Americans are afraid to go on camera with a joke about their president, we're nowhere near Egypt.

We are not in a war, legal or otherwise... unless you also consider the "war on drugs" a war too. Drugs have easily killed more americans than terrorists and like "terror" it will never go away.

Anyone who has used the phrase "we're at war" during this entire discussion here on slashdot is a weak minded panzy who doesn't have the brains to realize that this is simply a line used to make them sheep for the government to push around. "oh, we're at war, well then it's ok for me to give up all my rights and do

Imagine a terror loony who has powdered a couple of ounces of plutonium and wrapped them around a single stick of dynamite and then lighting the fuse and tossing it off of a tall building. Imagine a contaminated, major city that must remain uninhabited for the next 100,000 years.

Umm, Fat Man [mphpa.org] had 13.6 pounds of plutonium in it and Nagasaki isn't uninhabitable for the next 100,000 years. I realize you were trying to make a point about the threat of dirty bombs but we don't do ourselves any favors when we exaggerate threats or blow them out of proportion. It would take a lot more than a "couple of ounces" of plutonium to render a city uninhabitable for any length of time, let alone 100,000 years.

We are forced to ferret them out and shut them down well before they reach out and kill large numbers of people.

I agree, although it kind of reminds me of Whac-A-Mole [wikipedia.org]. In the short term we need to tr

"Seriously, can anyone tell me ANYTHING whatsoever that the 4th amendment does now?"

A communication coming in abroad is no different than a package. The government has *always* had a right to intercept foreign shipments and communications. The 4th applies to American citizens *in* America not aything about people who are not Americans or persons (be they American or not) overseas.

You leave out the interesting case where the person abroad is a foreign correspondent for an American news agency. Its been established by whistle blowers that journalists have been a particular target of this eavesdropping, along with aid workers. You are in fact trampling freedom of the press if you let the government read and listen to all the emails and phone calls of a journalists without a warrant. It allows the government to immediately identify all of the journalists sources unless the contact is only made face to face which is pretty constraining. It places an immediate chilling effect on an independent press and on anyone telling a journalist anything. This is a big plus for the government and military which would prefer the public not know about all their dirty laundry.

"I disagree. Communication to me is the transmission of ideas. If you are still attaching them to pieces of trees, then they may be searched although the contents of that idea should not be."

Please we are in the information age Ideas are just as, if not more, powerful than 'pieces of trees'. But if you want to play it that way just say that the electrons are being inspected. The telephone to us is what the written letter was to the founders.

Depends on if that "communication" goes over lands/buildings/properties exclusively owned by a private individual US Citizen with 4th Amendment protections OR does that transmission cross some line of demarcation onto property that is not solely owned by that 4th Amendment protested individual?
To walk around your house naked is legal as it your right to privacy, but to go outside and walk down the street naked, your rights to privacy vanish!
My email have been ruled to be "unprotected" once it passes my line of demarcation and this is no different.
Putting it another way, two parties yelling across a public alley at one another from each of their private homes (or even if signaling each other in Morse Code with Naval Signaling Lights) are not protected by the 4th Amendment in their "Communication" as intercepting it can be done from lands and property not owned by either party. (And the same would be true if the same individual owned both homes, because the message crossed lands and property not subject to the 4th Amendment protections of the individual citizen.

IANAL, but as I understand the 4th Amendment, it was written over SEARCH and SEIZURES in/of a Private US Citizen's PROPERTY/HOME, and does not cover PUBLIC locations. For public locations, the Police need to abide by their own ROE and typically only probable cause or some other suspicion or wrongdoing is needed for the Police to search your person or vehicle (as you would NOT be located on/in YOUR 4th Amendment Protected private property but in a public location.)

to go outside and walk down the street naked, your rights to privacy vanish!

That is a dangerously authoritarian approach to the issue. If we were expected to give up all rights to privacy simply because we were no longer on our own land, we might as well have no privacy at all because only the invalid and the insane can be expected to live their lives without a significant, if not majority, of time spent outside of their own property.

The supreme court ruled, in Katz v US, that regardless of whether you are on public or private property, what matters is that you have a reasonable expectation to privacy whatever the location may be.

"I believe that the great mass of the people who opposed [the Constitution], disliked it because it did not contain effectual provision against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power: nor ought w

"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches."

"This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt."

In other words, it isn't very hard for 5 lawyers to screw things up for everyone!

Well, on the bright side, the ruling you cited was 5-4 with the five conservative judges yay and the four liberal judges nay. We can hope with fingers crossed that one of the conservative scumbags retires or dies very soon.

FISA's ruling is total madness. That's almost like a small-town judge being arrested for peeping in some poor woman's bathroom window and being caught jerking off in the bushes only to find himself innocent after presiding over his own trial! Good ol' state-sponsored voyeurism.

We can hope with fingers crossed that one of the conservative scumbags retires or dies very soon.

Scumbags really depends on your point of view and the particular case in question. I can think of at least three cases off the top of my head where the so-called liberal justices were the scumbags:

Gonzales v. Raich [wikipedia.org]: The Federal Government can arrest cancer patients for using cannabis even where such use is legal under State law. The liberals (joined by Scalia and Kennedy) all voted in favor of it. O'Connor, Rehnquist and Thomas opposed it.
Kelo v. City of New London [wikipedia.org]: The State can seize your private property for the benefit of private (i.e: Wal-Mart) development. The Liberals (joined by Kennedy) didn't have any problems with this. Scalia, O'Connor, Rehnquist and Thomas all dissented.
District of Columbia v. Heller [wikipedia.org]: The Liberals all dissented in this case, which held that the 2nd amendment protects an individual right to keep and bear arms. Apparently that's too much freedom for them.

Those are just the ones that I can think of off the top my head. Trust me when I say that the Liberal wing of the court is no better at protecting our rights.

I love how liberals think. They are responsible enough to decide when to kill a baby, but aren't responsible enough to use a gun for protection.

It's amazing how they can decide that "the right of the people to keep and bear Arms, shall not be infringed." does not mean what it says.

So, by collective right you are saying that our rights are not being infringed by denying a DC resident to have a gun because someone in Montana can have one? Or by saying the National Guard is allowed to have guns?

It's amazing how they can decide that "the right of the people to keep and bear Arms, shall not be infringed." does not mean what it says.

That amendment has needed changing forever. Almost everyone agrees it doesn't apply if the particular arms we're talking about are nuclear. In order to avoid the interpretation making nuclear weapons legal to keep at home, you're forced to play word games with the first half that you didn't quote. Once you start down that road, there's no telling where you end up.

Not that I believe that people should have a right to keep or bear arms, but then I'm not a US citizen and I don't live in the US.

The exclusionary rule is an artificial judicial construct that is not a constitutional right. Stone v. Powell, 428 U.S. 465 (1976). The Fourth Amendment only guarantees freedom from illegal search and seizure. Introducing illegally-obtained evidence in a criminal case is neither. Excluding illegally-obtained evidence is meant to deter police misconduct but the public pays the cost in freed criminals. If the official misconduct was TRULY not intentional (setting aside your cynicism) then there is no deterren

Actually, in all seriousness, I believe that they do. I think that all the paranoia about them trying to enslave our minds to support some massive corporate/governing elite by censoring our movements, restricting our speech, and stripping our rights away is nonsense. I think that the Intelligence agencies and probably better than half of our governing body is motivated (mainly) by wanting to do what's best for us and keep us safe.

The problem is that their idea of what's "best for us" may not line up with mine and I'll be damned if I'm going to voluntarily abandon rights because it may-or-may-not make some minimal impact on my safety that would be dwarfed by efforts on the non-terror front. I don't so much question their intentions (although I don't object too loudly when other people do - blind trust is usually a bad idea), I just object to their methods.

Well, in the fine tradition of our founding fathers then, let's assemble publicly, choose representatives from amongst us, and then send them out internationally to work towards encrypting the network and locking it down, taking away the ability of our government to spy on us at the network level. You don't play well with others, and soon you'll have nobody to play with. Simple. Of course... who will bell the cat?

So what time do the riots and looting start? I'm not off work til 5pm but I gotta pickup the kids and get them home by 6pm, oh and I have to watch an episode of House MD before I can head out. On second thought, I do have to work tomorrow and don't want to be inconvenienced, so lets put them off until its warmer outside as well, maybe next year, or the year after?

But I strongly suspected this already. Most people who actually analyzed the situation and the LAW thought it was a strong possibility.

Unfortunately, every time I attempted to discuss the actual LAW, I (and others) were shouted down (and modded down) by the "WHARGARBLL FUCK BUSH BLAHGHGHG!!" crowd, who'd rather not have their prejudices disproven.

Things can be legal, and still be intrusive and wrong on a moral level.

Perhaps in the future, all of you who screamed "Illegal wiretaps!!!!" at the top of your lungs will take the time to listen.

Seems to me that the optical splitters AT&T put on the network backbone, copying traffic to the NSA -- BY DEFINITION -- captured and forwareded ALL the traffic on the network, therefore also capturing and copying YOUR conversations and emails with YOUR MOM.

Intelligence collection on non-US Persons [wikipedia.org] outside of the US has never required a warrant, throughout the entire history of the United States.

The difference occurred when traffic of non-US Persons outside of the US started traveling through the US. Suddenly a warrant is required because digital traffic passed through a routing center in Chicago when one end is in Pakistan and the other is in Saudi Arabia? That's what the now-sunset Protect America Act temporarily fixed, and the FISA Amendments Act of 2008 permanently fixes.

If you believe that a warrant should be required for intelligence collection on persons outside of the US with no legal standing of any kind with the US (i.e., citizen, vistor, legal resident, etc.), then you are completely out of step with all law, intelligence policy, and scholarship on the issue.

No one actually cares about the truth here, any of the issues at play, nor the legality of any programs. Most make it a huge political issue, and is it any surprise that even the "leakers" have all had a political axe to grind with the Bush administration?

They just scream "unconstitutional" and rant about Bush, when the very mechanisms set up in our society to render legal opinions on actions of various components of government and to rule on issues of legality or constitutionality have judged certain thing

This is about the program under the law passed by Congress which authorized warrantless wiretapping after the President was doing it; not the program which was carried out prior to that by the President in direct contravention to the prohibitions of the statute law existing at the time.

Of course, one might reasonably question whether the decision comports with the Constitution even there, but its an important distinction to make, since there have been issues both with the power of government as a whole and the independent power of the President, regardless of the laws passed by Congress relating to warrantless wiretapping, and the two issues sometimes get muddled.

The tag "bushcrimesyndicate" is inaccurate. For those of you who haven't read the Constitution, Congress is responsible for setting up all Federal courts, including the FISA court (surely nobody believes that Bush created FISA...).

. . . for any citizen to conspire, support, or engage in activities whose sole purpose is the violent overthrow of the Constitution?

Since December 15, 1791.

The first amendment allows freedom of expression, even if the idea being expressed is to abolish the existing government.

The second amendment was not passed to protect the rights of hunters. It was passed so that common citizens could, in the inevitable instance that their government becomes tyrannical, can be overthrown. In 1791, "well-regulated" did not mean that the militia would be "regulated" or licensed by the government (you didn't need a license for anything in 1791). "Well-regulated" meant a militia that could shoot straight.

These ideas were not outrageous to the founding fathers. They themselves had just violently overthrown their government. While not law, these ideas are expressed clearly in the opening of the Declaration of Independence:

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

Treason is almost never charged. In the two hundred and twenty years since the US Constitution went into effect, the grand total of treason indictments: less than 40. Number of convictions: even less. Minimally, history has shown that we can run a country successfully without much use of the charge of "treason"; I'd say we probably could get by without that particular charge at all.

The common mythology, that the purpose of the Second Amendment is some sort of backstop against an unjust government from taking over, has little historical basis. Like the rest of the Amendments, it was written for a pratcial purpose, not an esoteric one.

That practial purpose was: It protected the interests of the slave states by explicity granting them the right to use the tools (firearms) necessary to maintain their economic interests (slavery).

The common mythology, that the Second Amendment is intended to protect from tyrrany, is turned on its head when looked at from the slave's point of view.

Don't misunderstand me, I'm not suggesting the Founding Fathers would have banned private ownership of guns in the absence of slavery. But the individual's right to bear arms is specifically carved out in the Constitution to protect the interests of the slave states.

Look at the language of the Second Amendment itself. Ask yourself "What did a militia do 200 years ago?" One of the things they did was put down slave uprisings.

As of 2007, the NSA program is perfectly legal, accoring to the court. It does not necessarily mean that the program has always been legal. In fact, it's pretty likely that it violated a number of statues, and that's what's technically important here.

The powers of the President to wage war and to protect national security are subject to Congressional oversight and regulation. While most people are aware that the Constitution names the President "Commander in Chief", the powers granted to him are significantly less than those of a military dictator, even with respect to the policy and management of the military. For example officer commissions are approved by the senate Although this is largely a pro forma affair. Indeed every aspect of running and employing the military is subject to Congressional regulation.

This is important because in US Constitutional law, there is no explicit right of personal privacy, and the exact extent of the implicit right of privacy (under the Ninth Amendment) is not perfectly clear. If the Executive Branch is empowered to do something, that means it is up to Congress to see to it that it does not violate the Ninth Amendment.

It is largely due to Congress's power regulate Executive functions that we have many restrictions on wiretapping at all. While the reach of the Fourth Amendment has been considerably widened by court opinions in the 20th Century (e.g., Katz v. US) for criminal investigation, intelligence investigation inherently requires a violation of the "expectation of privacy", something that Katz says can only be done with a warrant in criminal cases.

So, if Congress says the President can intercept phone calls for intelligence purposes, it seems probable that this will be treated by the courts as constitutional. If that's not the case, it is Congress that has failed in its duty to safeguard Americans from the Executive Branch.

The FISA court is simply recognizing that no one has a right to privacy when making an international call. Freedom of Speech does not make any guarantee of privacy, nor does Freedom from Search & Seizure exist at the border. The NSA program specifically targeted phone calls between the US and a foreign country.

The FISA court still needs to exist to temper abuse for domestic wire taps.

I've explained this several times on this site and I'm glad to see the court has finally figured out how to read.

The problem with this statement is that both the current administration and the upcoming administration don't seem to mind that it's not constitutional. Facts have an odd way of falling through the cracks in a bureaucracy.

What the President was referring to when said that is family was a 45 second commute away was that when Obama might feel overwhelmed then his support system, i.e. his family was an EASY 45 second commute away.

Note the "EASY" emphasis was mine. Bush said neither tough or easy from what I remember him saying. Whoops - I actually watched the discussion live. What I'm saying above was the context of the comment.

FISA is a dedicated branch of the Federal Court system set up for the sole purpose of handling warrants for the intelligence agencies. All of it's members are required to have a Top Secret or better security clearance and it is very much a closed door court.

Most of the paperwork that goes through FISA is classified in some way or another, so its not available for review like normal court documents. In some ways, it's a lot more like a Grand Jury where everything is sealed until after the trial. The only problem is that Intelligence agency work is almost never done, so nothing ever becomes unsealed.

As for history, FISA was created in response to Nixon & Watergate. It satisfied the needs of the intelligence community to be able to work in secret inside the US to handle cross border work, while still maintaining checks & balances on the actual activity. Currently, god only knows what kind of check it's actually performing - last report I saw was rating @ 99+% approval of warrant requests.